Former president Jacob Zuma in the Pietermaritzburg High Court. (Rogan Ward/AFP)
The state on Wednesday pleaded with Judge Nkosinathi Chili to set the arms deal case down for trial from April next year despite Jacob Zuma’s planned application for leave to appeal his dismissal of the former president’s most recent bid to have Billy Downer removed as the prosecutor in the matter.
Chili on Wednesday expanded on his reasons for dismissing that application in March, and said all Zuma’s grounds for pleading that Downer compromised his fair trial rights were without merit.
He set out his reasoning at the insistence of Zuma’s legal team, who argued that it was necessary to allow them to mount an appeal. The court had intended to give full reasons at the end of the trial, which the state said was the correct approach and would prevent further delay in the case that dates back to 2005.
Downer asked Chili to set down a date for hearing the application for leave to appeal this year still, but the judge said he would only be available from January next year.
The prosecutor said he was reiterating his plea that the court reserve the weeks from 14 April to 20 June, and 21 July to 19 September for trial, whatever the outcome of the planned application.
“Those dates in April must remain and the trial must start, whatever the status of any appeal processes might be going forward, because no matter what your Lordship decides in January on the date which the court will insert.”
Downer said it was clear that if the application for leave to appeal were denied, Zuma would appeal to a higher court “in accordance with what we say is Stalingrad”.
“This cannot be allowed to continue,” he added.
“We will be ready for trial, the state witnesses will be briefed, the police will be available, the court will be available and my learned friends, certainly for accused number two [French arms maker Thales] have indicated that they will be available.”
Downer said Zuma’s chief counsel, Dali Mpofu, had also confirmed his availability.
“We must now make it clear that we cannot simply carry on moving the trial on to accommodate a long series of appeals which takes sometimes years, up to the SCA [supreme court of appeal] and the constitutional court,” Downer said.
Advocate Nqabayethu Buthelezi, for Zuma, countered that it would be unfair to the court to reserve dates when Chili’s ruling is being appealed and that the process needs to run its full course.
“The appeal avenues that exist in as far as petitioning the SCA and further, make it unfeasible that we would sit here in good mind and good conscience and accept that we are going to start the trial as of April next year. That is not possible.”
Chili said he would consult the judge president of KwaZulu-Natal regarding available dates.
In his reasons for dismissing Zuma’s second tilt at dislodging Downer in the last three years, the judge referred to a ruling by the appellate court in which his attempt to institute a private, criminal prosecution against the veteran prosecutor was deemed a hopeless case and an egregious abuse of process.
The purported prosecution was one of the four pillars on which Zuma constructed his application for Downer’s removal. Like the other three, Chili said, it did not hold up.
Zuma’s lawyers had argued that Downer was disqualified by the fact that he faced charges, instituted by the accused himself, of breaching the National Prosecuting Authority (NPA) Act by leaking his confidential medical records to the media.
But Chili said the high court, in a ruling by the initial trial judge, Piet Koen, held that none such happened. A full bench reached the same conclusion, and these findings were confirmed by the appellate.
“It is important to note that every attempt to overturn Koen J’s judgment has been unsuccessful. Findings made in the removal and private prosecution judgments are binding on this court,” he stressed.
Therefore, Zuma’s further argument that it would make a mockery of the justice system if Downer were to appear as an accused one day, and the next appear in court to prosecute his accuser, stood to be dismissed.
Chili said had the charges against Downer stood, he would not have hesitated to grant an order for his removal.
“But that is not the position. As things stand there is no private prosecution. All attempts by Mr Zuma to prosecute Mr Downer have been unsuccessful.
“I might just add that as a debate of the hearing of argument in the present application, the supreme court of appeal had already made a factual finding that the attempt by Mr Zuma to prosecute Mr Downer amounted to an abuse of process.”
He quoted at some length from the SCA ruling.
“The facts demonstrate that a private prosecution of Mr Downer is an abuse of the process of the court for multiple reasons. First, as the high court found, it was instituted as a further step in a sustained attempt by Mr Zuma to obstruct and delay his criminal trial.
“This is an ulterior purpose and the institution of the private prosecution was accordingly unlawful. Second, it was instituted in order to have Mr Downer removed as the prosecutor in Mr Zuma’s trial. This too is an ulterior purpose which renders the private prosecution unlawful and, third, the contemplated private prosecution is patently a hopeless case. It is obviously unsustainable.”
Zuma had sought to bolster his application by reviving a complaint that Downer had impermissibly divulged details of the prosecution to investigative journalist Sam Sole in 2008. That too has been found to be meritless, Chili said.
The judge also quoted submission by advocate Geoff Budlender, for the NPA, that Zuma was attempting, through his multiple applications, to pick the prosecutor of his choice to conduct the trial stemming from alleged fraud, corruption and money-laundering related to South Africa’s 1990s arms acquisition.
“He proceeded to say that if such a process were allowed that would become a standard tool in the toolbox for well-resourced accused persons to abuse the process. He further expressed the view that our law does not tolerate such processes,” Chili said.
“There is merit in that argument.”
He noted that Downer had argued that the complexity of the case, and the financial prejudice his removal would mean for the state, were among the reasons he should be retained.
Zuma did not deal with these submissions in his answering affidavit, other than saying Downer was not indispensable, Chili noted.
Furthermore, Zuma had conceded that many of his complaints against Downer have been dealt with by the courts but said he was raising these again to demonstrate that the atmosphere surrounding the trial had become too toxic for him to prosecute the matter.
The court did not agree.
“Having considered all the grounds advanced by Mr Zuma, both individually and cumulatively, I was unable to conclude that Mr Zuma’s right to a fair trial will be violated if Mr Downer will remain the prosecutor in the matter,” Chili said.